75R14452 DLF-F                          

         By Zaffirini                                            S.B. No. 55

         Substitute the following for S.B. No. 55:

         By Longoria                                         C.S.S.B. No. 55

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the regulation of the sale, distribution, and use of

 1-3     tobacco products; providing penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5         ARTICLE 1.  DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS

 1-6           SECTION 1.01.  Subchapter H, Chapter 161, Health and Safety

 1-7     Code, is amended to read as follows:

 1-8         SUBCHAPTER H.  DISTRIBUTION [SALE] OF CIGARETTES OR TOBACCO

 1-9                            PRODUCTS [TO MINORS]

1-10           Sec. 161.081.  DEFINITIONS.  In this subchapter:

1-11                 (1)  "Cigarette" has the meaning assigned by Section

1-12     154.001, Tax Code.

1-13                 (2)  "Permit holder" has the meaning assigned by

1-14     Section 154.001 or 155.001, Tax Code, as applicable.

1-15                 (3)  "Retail sale" means a transfer of possession from

1-16     a retailer to a consumer in connection with a purchase, sale, or

1-17     exchange for value of cigarettes or tobacco products.

1-18                 (4)  "Retailer" has the meaning assigned by Section

1-19     154.001 or 155.001, Tax Code, as applicable.

1-20                 (5)  "Tobacco product" has the meaning assigned by

1-21     Section 155.001, Tax Code.

1-22                 (6)  "Wholesaler" has the meaning assigned by Section

1-23     154.001 or 155.001, Tax Code, as applicable.

1-24           Sec. 161.082.  SALE OF CIGARETTES OR TOBACCO PRODUCTS TO

 2-1     PERSONS YOUNGER THAN 18 YEARS OF AGE [MINORS] PROHIBITED; PROOF OF

 2-2     AGE REQUIRED.  (a)  A person commits an offense if the person, with

 2-3     criminal negligence [as a commercial enterprise]:

 2-4                 (1)  sells, gives, or causes to be sold or given a

 2-5     cigarette or [other] tobacco product to someone who [the person

 2-6     knows] is younger than 18 years of age; or

 2-7                 (2)  sells, gives, or causes to be sold or given a

 2-8     cigarette or [other] tobacco product to another person who[,

 2-9     knowing that the person receiving the cigarette or other tobacco

2-10     product] intends to deliver it to someone who is younger than 18

2-11     years of age.

2-12           (b)  If an offense under this section occurs in connection

2-13     with a sale by an employee of the owner of a store in which

2-14     cigarettes or tobacco products are sold at retail, the employee is

2-15     criminally responsible for the offense and is subject to

2-16     prosecution.

2-17           (c)  An offense under this section is a Class C misdemeanor.

2-18           (d) [(c)]  It is a defense to prosecution under Subsection

2-19     (a)(1) [this section] that the person to whom the cigarette or

2-20     [other] tobacco product was sold or given presented to the

2-21     defendant [an] apparently valid proof of [Texas driver's license or

2-22     an] identification.

2-23           (e)  A proof of identification satisfies the requirements of

2-24     Subsection (d) if it contains [card, issued by the Department of

2-25     Public Safety and containing] a physical description and photograph

2-26     consistent with the person's appearance, purports [that purported]

2-27     to establish that the person is [was] 18 years of age or older, and

 3-1     was issued by a governmental agency.  The proof of identification

 3-2     may include a driver's license issued by this state or another

 3-3     state, a passport, or an identification card issued by a state or

 3-4     the federal government.

 3-5           Sec. 161.083.  SALE OF CIGARETTES OR TOBACCO PRODUCTS TO

 3-6     PERSONS YOUNGER THAN 27 YEARS OF AGE.  (a)  Pursuant to federal

 3-7     regulation under 21 C.F.R. Section 897.14(b), a person may not

 3-8     sell, give, or cause to be sold or given a cigarette or tobacco

 3-9     product to someone who is younger than 27 years of age unless the

3-10     person to whom the cigarette or tobacco product was sold or given

3-11     presents an apparently valid proof of identification.

3-12           (b)  A retailer shall adequately supervise and train the

3-13     retailer's agents and employees to prevent a violation of

3-14     Subsection (a).

3-15           (c)  A proof of identification described by Section

3-16     161.082(e) satisfies the requirements of Subsection (a).

3-17           (d)  Notwithstanding any other provision of law, a violation

3-18     of this section is not a violation of this subchapter for purposes

3-19     of Section 154.1142 or 155.0592, Tax Code.

3-20           Sec. 161.084 [161.082].  WARNING NOTICE.  (a)  Each person

3-21     who sells cigarettes or tobacco products at retail or by vending

3-22     machine shall post a sign in a location that is conspicuous to all

3-23     employees and customers and that is close to the place at which the

3-24     cigarettes or tobacco products may be purchased.

3-25           (b)  The sign must include the statement:

3-26                 PURCHASING OR ATTEMPTING TO PURCHASE

3-27                 TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS

 4-1                 OF AGE IS PROHIBITED BY LAW.  SALE OR

 4-2                 PROVISION OF TOBACCO PRODUCTS TO A MINOR

 4-3                 UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.

 4-4                 UPON CONVICTION, A CLASS C MISDEMEANOR,

 4-5                 INCLUDING A [MAXIMUM] FINE OF UP TO $500,

 4-6                 [$200] MAY BE IMPOSED.  VIOLATIONS MAY BE

 4-7                 REPORTED TO THE TEXAS COMPTROLLER'S OFFICE

 4-8                 BY CALLING (insert toll-free telephone

 4-9                 number).

4-10           (c)  The comptroller [board] by rule shall determine the

4-11     design and size of the sign.

4-12           (d)  The comptroller [department] on request shall provide

4-13     the sign without charge to any person who sells cigarettes or

4-14     tobacco [cigarette] products.  The comptroller [department] may

4-15     provide the sign without charge to [cigarette] distributors of

4-16     cigarettes or tobacco products or wholesale dealers of cigarettes

4-17     or tobacco [cigarette] products in this state for distribution to

4-18     persons who sell cigarettes or tobacco [cigarette] products.  A

4-19     distributor or wholesale dealer may not charge for distributing a

4-20     sign under this subsection.

4-21           (e)  A person commits an offense if the person intentionally

4-22     fails to display a sign as prescribed by this section.  An offense

4-23     under this subsection is a Class C misdemeanor.

4-24           Sec. 161.085.  NOTIFICATION OF EMPLOYEES AND AGENTS.  (a)

4-25     Each permit holder shall notify each individual employed by that

4-26     permit holder who is to be engaged in retail sales of cigarettes or

4-27     tobacco products that state law:

 5-1                 (1)  prohibits the sale or distribution of cigarettes

 5-2     or tobacco products to any person who is younger than 18 years of

 5-3     age as provided by Section 161.082 and that a violation of that

 5-4     section is a Class C misdemeanor; and

 5-5                 (2)  requires each person who sells cigarettes or

 5-6     tobacco products at retail or by vending machine to post a warning

 5-7     notice as provided by Section 161.084, requires each employee to

 5-8     ensure that the appropriate sign is always properly displayed while

 5-9     that employee is exercising the employee's duties, and provides

5-10     that an intentional violation of Section 161.084 is a Class C

5-11     misdemeanor.

5-12           (b)  The notice required by Subsection (a) must be provided

5-13     within 72 hours of the date an individual begins to engage in

5-14     retail sales of tobacco products.  The individual shall signify

5-15     that the individual has received the notice required by Subsection

5-16     (a) by signing a form stating that the law has been fully

5-17     explained, that the individual understands the law, and that the

5-18     individual, as a condition of employment, agrees to comply with the

5-19     law.

5-20           (c)  Each form signed by an individual under this section

5-21     shall indicate the date of the signature and the current address

5-22     and social security number of the individual.  The permit holder

5-23     shall retain the form signed by each individual employed as a

5-24     retail sales clerk until the 60th day after the date the individual

5-25     has left the employer's employ.

5-26           (d)  A permit holder required by this section to notify

5-27     employees commits an offense if the permit holder fails, on demand

 6-1     of a peace officer or agent of the comptroller, to provide the

 6-2     notice prescribed by this section.  An offense under this section

 6-3     is a Class C misdemeanor.

 6-4           (e)  It is a defense to prosecution under Subsection (d) to

 6-5     show proof that the employee did complete, sign, and date the

 6-6     notice required by Subsection (a).  Proof must be shown to the

 6-7     comptroller or an agent of the comptroller within 72 hours of the

 6-8     offense.

 6-9           Sec. 161.086.  VENDOR ASSISTED SALES REQUIRED; VENDING

6-10     MACHINES.  (a)  Except as provided by Subsection (b), a retailer or

6-11     other person may not:

6-12                 (1)  offer cigarettes or tobacco products for sale in a

6-13     manner that permits a customer direct access to the cigarettes or

6-14     tobacco products; or

6-15                 (2)  install or maintain a vending machine containing

6-16     cigarettes or tobacco products.

6-17           (b)  Subsection (a) does not apply to a facility or business

6-18     that is not open to persons younger than 18 years of age at any

6-19     time.

6-20           (c)  The comptroller or a peace officer may, with or without

6-21     a warrant, seize, seal, or disable a vending machine installed or

6-22     maintained in violation of this section.  Property seized under

6-23     this subsection must be seized in accordance with, and is subject

6-24     to forfeiture to the state in accordance with, Subchapter H,

6-25     Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.

6-26           (d)  A person commits an offense if the person violates

6-27     Subsection (a).  An offense under this subsection is a Class C

 7-1     misdemeanor.

 7-2           Sec. 161.087.  DISTRIBUTION OF CIGARETTES OR TOBACCO

 7-3     PRODUCTS.  (a)  A person may not distribute to persons younger than

 7-4     18 years of age:

 7-5                 (1)  a free sample of a cigarette or tobacco product;

 7-6     or

 7-7                 (2)  a coupon or other item that the recipient may use

 7-8     to receive a free or discounted cigarette or tobacco product or a

 7-9     sample cigarette or tobacco product.

7-10           (b)  Except as provided by Subsection (c), a permit holder

7-11     may not accept or redeem, offer to accept or redeem, or hire a

7-12     person to accept or redeem a coupon or other item that the

7-13     recipient may use to receive a free or discounted cigarette or

7-14     tobacco product or a sample cigarette or tobacco product if the

7-15     recipient is younger than 18 years of age.  A coupon or other item

7-16     that a recipient may use to receive a free or discounted cigarette

7-17     or tobacco product or a sample cigarette or tobacco product may not

7-18     be redeemable through mail or courier delivery.

7-19           (c)  Subsections (a)(2) and (b) do not apply to a transaction

7-20     between permit holders unless the transaction is a retail sale.

7-21           (d)  A person commits an offense if the person violates this

7-22     section.  An offense under this subsection is a Class C

7-23     misdemeanor.

7-24           Sec. 161.088.  ENFORCEMENT; UNANNOUNCED INSPECTIONS.  (a)

7-25     The comptroller shall enforce this subchapter in partnership with

7-26     county sheriffs and municipal chiefs of police and with their

7-27     cooperation and shall ensure the state's compliance with Section

 8-1     1926 of the federal Public Health Service Act (42 U.S.C. Section

 8-2     300x-26) and any implementing regulations adopted by the United

 8-3     States Department of Health and Human Services.  Except as

 8-4     expressly authorized by law, the comptroller may not adopt any

 8-5     rules governing the subject matter of this subchapter or Subchapter

 8-6     K, N, or O.

 8-7           (b)  The comptroller may make block grants to counties and

 8-8     municipalities to be used by county sheriffs and municipal chiefs

 8-9     of police to enforce this subchapter in a manner that can

8-10     reasonably be expected to reduce the extent to which cigarettes and

8-11     tobacco products are sold or distributed to persons who are younger

8-12     than 18 years of age.  At least annually, random unannounced

8-13     inspections shall be conducted at various locations where

8-14     cigarettes and tobacco products are sold or distributed to ensure

8-15     compliance with this subchapter.  The comptroller shall rely, to

8-16     the fullest extent possible, on sheriffs or chiefs of police or

8-17     their employees to enforce this subchapter.

8-18           (c)  To facilitate the effective administration and

8-19     enforcement of this subchapter, the comptroller may enter into

8-20     interagency contracts with other state agencies, and those agencies

8-21     may assist the comptroller in the administration and enforcement of

8-22     this subchapter.

8-23           (d)  The use of a person younger than 18 years of age to act

8-24     as a minor decoy to test compliance with this subchapter shall be

8-25     conducted in a fashion that promotes fairness.  A person may be

8-26     enlisted by the comptroller to act as a minor decoy only if the

8-27     following requirements are met:

 9-1                 (1)  written parental consent is obtained for the use

 9-2     of a person younger than 18 years of age to act as a minor decoy to

 9-3     test compliance with this subchapter;

 9-4                 (2)  at the time of the inspection, the minor decoy is

 9-5     younger than 17 years of age;

 9-6                 (3)  the minor decoy has an appearance that would cause

 9-7     a reasonably prudent seller of cigarettes or tobacco products to

 9-8     request identification and proof of age;

 9-9                 (4)  the minor decoy carries either the minor's own

9-10     identification showing the minor's correct date of birth or carries

9-11     no identification, and a minor decoy who carries identification

9-12     presents it on request to any seller of cigarettes or tobacco

9-13     products; and

9-14                 (5)  the minor decoy answers truthfully any questions

9-15     about the minor's age.

9-16           (e)  The comptroller shall annually prepare for submission by

9-17     the governor to the secretary of the United States Department of

9-18     Health and Human Services the report required by Section 1926 of

9-19     the federal Public Health Service Act (42 U.S.C. Section 300x-26).

9-20           Sec. 161.089.  PREEMPTION OF LOCAL LAW.  This subchapter does

9-21     not preempt a local regulation of the sale, distribution, or use of

9-22     cigarettes or tobacco products or affect the authority of a

9-23     political subdivision to adopt or enforce an ordinance or

9-24     requirement relating to the sale, distribution, or use of

9-25     cigarettes or tobacco products if the regulation, ordinance, or

9-26     requirement:

9-27                 (1)  is compatible with and equal to or more stringent

 10-1    than a requirement prescribed by this subchapter; or

 10-2                (2)  relates to an issue that is not specifically

 10-3    addressed by this subchapter or Chapter 154 or 155, Tax Code.

 10-4          Sec. 161.090.  REPORTS OF VIOLATION.  A local or state law

 10-5    enforcement agency or other governmental unit shall notify the

 10-6    comptroller, on the 10th day of each month, or the first working

 10-7    day after that date, of any violation of this subchapter that

 10-8    occurred in the preceding month that the agency or unit detects,

 10-9    investigates, or prosecutes.

10-10         ARTICLE 2.  ADVERTISING OF CIGARETTES OR TOBACCO PRODUCTS

10-11          SECTION 2.01.  Subchapter K, Chapter 161, Health and Safety

10-12    Code, is amended to read as follows:

10-13        SUBCHAPTER K.  PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO

10-14                         PRODUCT ADVERTISING; FEE

10-15          Sec. 161.121.  DEFINITIONS.  In this subchapter:

10-16                (1)  "Church" means a facility that is owned by a

10-17    religious organization and that is used primarily for religious

10-18    services.

10-19                (2)  "Cigarette" has the meaning assigned by Section

10-20    154.001, Tax Code.

10-21                (3)  "School" means a private or public elementary or

10-22    secondary school.

10-23                (4) [(3)]  "Sign" means an outdoor medium, including a

10-24    structure, display, light device, figure, painting, drawing,

10-25    message, plaque, poster, or billboard, that is:

10-26                      (A)  used to advertise or inform; and

10-27                      (B)  visible from the main-traveled way of a

 11-1    street or highway.

 11-2                (5) [(4)]  "Tobacco product" has the meaning assigned

 11-3    by Section 155.001, Tax Code.

 11-4          Sec. 161.122.  PROHIBITION RELATING TO CERTAIN SIGNS;

 11-5    EXCEPTIONS.  (a)  Except as provided by this section, a [A] sign

 11-6    containing an advertisement for cigarettes or tobacco products may

 11-7    not be located closer than 1,000 [500] feet to a church or school.

 11-8          (b)  The measurement of the distance between the sign

 11-9    containing an advertisement for cigarettes or tobacco products and

11-10    an institution listed in Subsection (a) is from the nearest

11-11    property line of the institution to a point on a street or highway

11-12    closest to the sign, along street lines and in direct lines across

11-13    intersections.

11-14          (c)  This section does not apply to[:]

11-15                [(1)]  a sign located on or in a facility owned or

11-16    leased by a professional sports franchise or in a facility where

11-17    professional sports events are held at least 10 times during a

11-18    12-month period[; or]

11-19                [(2)  a contract for a cigarette or other tobacco

11-20    product advertisement entered into before August 26, 1991].

11-21          (d)  In Subsection (c)(1), a "facility" includes a stadium,

11-22    arena, or events center and any land or property owned or leased by

11-23    the professional sports franchise that is connected to or

11-24    immediately contiguous to the stadium, arena, or events center.

11-25          (e)  Subsection (a) does not apply to a sign containing an

11-26    advertisement for cigarettes or tobacco products that, before

11-27    September 1, 1997, was located closer than 1,000 feet to a church

 12-1    or school but that was not located closer than 500 feet to the

 12-2    church or school.

 12-3          Sec. 161.123.  ADVERTISING FEE.  (a)  A purchaser of

 12-4    advertising is liable for and shall remit to the comptroller a fee

 12-5    that is 10 percent of the gross sales price of any outdoor

 12-6    advertising of cigarettes and tobacco products in this state.

 12-7          (b)  The comptroller shall collect the fee and deposit the

 12-8    money as provided in this section.

 12-9          (c)  The liability for the payment of fees under this section

12-10    may not be nullified by contract.

12-11          (d)  The comptroller shall establish by rule the periods for

12-12    collection of the fees and the methods of payment and shall adopt

12-13    other rules necessary to administer and enforce this section.

12-14          (e)  In this section, "gross sales price" means the sum of:

12-15                (1)  production costs;

12-16                (2)  media cost; and

12-17                (3)  cost of sales or commissions paid to an agency or

12-18    broker.

12-19          Sec. 161.124.  USE OF ADVERTISING FEE.  (a)  The comptroller

12-20    shall deposit the fee collected under Section 161.123 to a special

12-21    account in the state treasury called the tobacco education and

12-22    enforcement education fund.

12-23          (b)  Money in the account may be appropriated only for

12-24    administration and enforcement of this section, enforcement of law

12-25    relating to cigarettes and tobacco products, and an education

12-26    advertising campaign relating to cigarettes and tobacco products.

12-27          Sec. 161.125.  ADMINISTRATIVE PENALTY.  (a)  The comptroller

 13-1    by order may impose an administrative penalty against a purchaser

 13-2    of advertising required to comply with Section 161.123 who violates

 13-3    that section or a rule or order adopted under that section.

 13-4          (b)  The penalty for a violation may be in an amount not to

 13-5    exceed $5,000.  Each day a violation continues or occurs is a

 13-6    separate violation for purposes of imposing a penalty.

 13-7          (c)  The amount of the penalty shall be based on:

 13-8                (1)  the amount of fees due and owing;

 13-9                (2)  attempted concealment of misconduct by the person

13-10    who committed the violation;

13-11                (3)  premeditated misconduct by the person who

13-12    committed the violation;

13-13                (4)  intentional misconduct by the person who committed

13-14    the violation;

13-15                (5)  the motive of the person who committed the

13-16    violation;

13-17                (6)  prior misconduct of a similar or related nature by

13-18    the person who committed the violation;

13-19                (7)  prior written warnings or written admonishments

13-20    from any government agency or official grading statutes or

13-21    regulations pertaining to the misconduct;

13-22                (8)  violation by the person who committed the

13-23    violation of an order of the comptroller;

13-24                (9)  lack of rehabilitative potential or likelihood for

13-25    future misconduct of a similar nature;

13-26                (10)  relevant circumstances increasing the seriousness

13-27    of the misconduct; and

 14-1                (11)  any other matter justice may require.

 14-2          (d)  The comptroller shall prescribe the procedure by which

 14-3    the comptroller may impose an administrative penalty under this

 14-4    section.

 14-5          (e)  A proceeding under this section is subject to Chapter

 14-6    2001, Government Code.

 14-7          (f)  If the comptroller by order finds that a violation has

 14-8    occurred and imposes an administrative penalty, the comptroller

 14-9    shall give notice to the person of the comptroller's order.  The

14-10    notice must include a statement of the rights of the person to

14-11    judicial review of the order.

14-12          (g)  If the purchaser of advertising does not pay the amount

14-13    of the penalty, the comptroller may refer the matter to the

14-14    attorney general for collection of the amount of the penalty.

14-15          (h)  A penalty collected under this section shall be

14-16    deposited in the general revenue fund.

14-17                       ARTICLE 3.  YOUTH TOBACCO USE

14-18          SECTION 3.01.  Chapter 161, Health and Safety Code, is

14-19    amended by adding Subchapters N and O to read as follows:

14-20                   SUBCHAPTER N.  TOBACCO USE BY MINORS

14-21          Sec. 161.251.  DEFINITIONS.  In this subchapter:

14-22                (1)  "Cigarette" has the meaning assigned by Section

14-23    154.001, Tax Code.

14-24                (2)  "Tobacco product" has the meaning assigned by

14-25    Section 155.001, Tax Code.

14-26          Sec. 161.252.  POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT

14-27    OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED.  (a)  An

 15-1    individual who is younger than 18 years of age commits an offense

 15-2    if the individual:

 15-3                (1)  possesses, purchases, consumes, or accepts a

 15-4    cigarette or tobacco product; or

 15-5                (2)  falsely represents himself or herself to be 18

 15-6    years of age or older by displaying proof of age that is false,

 15-7    fraudulent, or not actually proof of the individual's own age in

 15-8    order to obtain possession of, purchase, or receive a cigarette or

 15-9    tobacco product.

15-10          (b)  It is an exception to the application of this section

15-11    that the individual younger than 18 years of age possessed the

15-12    cigarette or tobacco product in the presence of:

15-13                (1)  an adult parent, a guardian, or a spouse of the

15-14    individual; or

15-15                (2)  an employer of the individual, if possession or

15-16    receipt of the tobacco product is required in the performance of

15-17    the employee's duties as an employee.

15-18          (c)  It is an exception to the application of this section

15-19    that the individual younger than 18 years of age is participating

15-20    in an inspection or test of compliance in accordance with Section

15-21    161.088.

15-22          (d)  An offense under this section is a Class C misdemeanor.

15-23          Sec. 161.253.  TOBACCO AWARENESS PROGRAM; COMMUNITY SERVICE.

15-24    (a)  On conviction of an individual for an offense under Section

15-25    161.252, the court shall suspend execution of sentence and shall

15-26    require the defendant to attend a tobacco awareness program

15-27    approved by the comptroller.  The court may require the parent or

 16-1    guardian of the defendant to attend the tobacco awareness program

 16-2    with the defendant.

 16-3          (b)  On request, a tobacco awareness program may be taught in

 16-4    languages other than English.

 16-5          (c)  If the defendant resides in a rural area of this state

 16-6    or another area of this state in which access to a tobacco

 16-7    awareness program is not readily available, the court shall require

 16-8    the defendant to perform eight to 12 hours of tobacco-related

 16-9    community service instead of attending the tobacco awareness

16-10    program.

16-11          (d)  The tobacco awareness program and the tobacco-related

16-12    community service are remedial and are not punishment.

16-13          (e)  Not later than the 90th day after the date of a

16-14    conviction under Section 161.252, the defendant shall present to

16-15    the court, in the manner required by the court, evidence of

16-16    satisfactory completion of the tobacco awareness program or the

16-17    tobacco-related community service.

16-18          (f)  On receipt of the evidence required under Subsection

16-19    (e), the court shall execute the sentence but may reduce the fine

16-20    imposed to not less than half the fine previously imposed by the

16-21    court.

16-22          Sec. 161.254.  DRIVER'S LICENSE SUSPENSION OR DENIAL.

16-23    (a)  If the defendant does not provide the evidence required under

16-24    Section 161.253(e) within the period specified by that subsection,

16-25    the court shall order the Department of Public Safety to suspend or

16-26    deny issuance of any driver's license or permit to the defendant.

16-27    The order must specify the period of the suspension or denial,

 17-1    which may not exceed 180 days after the date of the order.

 17-2          (b)  The Department of Public Safety shall send to the

 17-3    defendant notice of court action under Subsection (a) by certified

 17-4    mail, return receipt requested.  The notice must include the date

 17-5    of the order and the reason for the order and must specify the

 17-6    period of the suspension or denial.

 17-7          Sec. 161.255.  EXPUNGEMENT OF CONVICTION. An individual

 17-8    convicted of an offense under Section 161.252 may apply to the

 17-9    court to have the conviction expunged.  If the court finds that the

17-10    individual satisfactorily completed the tobacco awareness program

17-11    or tobacco-related community service ordered by the court, the

17-12    court shall order the conviction and any complaint, verdict,

17-13    sentence, or other document relating to the offense to be expunged

17-14    from the individual's record and the conviction may not be shown or

17-15    made known for any purpose.

17-16          Sec. 161.256.  JURISDICTION OF COURTS.  A justice court or

17-17    municipal court may exercise jurisdiction over any matter in which

17-18    a court under this subchapter may:

17-19                (1)  impose a requirement that a defendant attend a

17-20    tobacco awareness program or perform tobacco-related community

17-21    service; or

17-22                (2)  order the suspension or denial of a driver's

17-23    license or permit.

17-24          Sec. 161.257.  APPLICATION OF OTHER LAW.  Title 3, Family

17-25    Code, does not apply to a proceeding under this subchapter.

17-26             (Sections 161.258-161.300 reserved for expansion

 18-1            SUBCHAPTER O.  PREVENTION OF TOBACCO USE BY MINORS

 18-2          Sec. 161.301.  TOBACCO USE PUBLIC AWARENESS CAMPAIGN.

 18-3    (a)  The comptroller shall develop and implement a public awareness

 18-4    campaign designed to reduce tobacco use by minors in this state.

 18-5    The campaign may use advertisements or similar media to provide

 18-6    educational information about tobacco use.

 18-7          (b)  The comptroller may contract with another person to

 18-8    develop and implement the public awareness campaign, except that

 18-9    the comptroller may not contract with any person or entity that is

18-10    required to register with the Texas Ethics Commission under Chapter

18-11    305, Government Code, or any partner, employee, employer, relative,

18-12    contractor, consultant, or related entity of such a person or

18-13    entity.

18-14                  ARTICLE 4.  RELATED TAX CODE PROVISIONS

18-15          SECTION 4.01.  (a)  Section 154.111, Tax Code, is amended by

18-16    amending Subsection (b) and adding Subsection (g) to read as

18-17    follows:

18-18          (b)  An application for a permit required by this chapter

18-19    must be accompanied by a fee of:

18-20                (1)  $300 [$100] for a bonded agent's permit;

18-21                (2)  $300 [$100] for a distributor's permit;

18-22                (3)  $200 [$50] for a wholesaler's permit; [and]

18-23                (4)  $15 for each permit for a vehicle if the applicant

18-24    is also applying for a permit as a bonded agent, distributor, or

18-25    wholesaler or has received a current permit from the comptroller

18-26    [treasurer] under Sections 154.101 and 154.110; and

18-27                (5)  $180 for a retailer's permit.

 19-1          (g)  Notwithstanding Subsection (b)(5), an application for a

 19-2    retailer's permit issued or renewed before September 1, 1999, must

 19-3    be accompanied by a fee of $125.  This subsection expires December

 19-4    31, 1999.

 19-5          (b)  Section 154.111(c), Tax Code, is repealed.

 19-6          SECTION 4.02.  Section 154.121, Tax Code, is amended to read

 19-7    as follows:

 19-8          Sec. 154.121.  REVENUE.  (a)  Except as provided by

 19-9    Subsection (b), revenue [Revenue] from the sale of permits to

19-10    distributors, wholesalers, and bonded agents is allocated in the

19-11    same manner as other revenue allocated by Subchapter J.

19-12          (b)  Revenue from the sale of retailer's permits shall be

19-13    deposited to the general revenue fund and may be appropriated only

19-14    as provided by this section.  The money may be appropriated first

19-15    to the comptroller for administration of licensing of retailers

19-16    under this chapter or Chapter 155.

19-17          (c)  If, after any appropriation is made under Subsection

19-18    (b), revenue remains from the sale of retailer's permits, the

19-19    remaining money may be appropriated to the comptroller for

19-20    administration and enforcement of Subchapters H, K, and N, Chapter

19-21    161, Health and Safety Code.

19-22          (d)  If, after any appropriation is made under Subsections

19-23    (b) and (c), revenue remains from the sale of retailer's permits,

19-24    the remaining money may be appropriated to the comptroller to

19-25    administer the comptroller's responsibilities under Subchapter O,

19-26    Chapter 161, Health and Safety Code.

19-27          SECTION 4.03.   Subchapter D, Chapter 154, Tax Code, is

 20-1    amended by adding Section 154.1142 to read as follows:

 20-2          Sec. 154.1142.  DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.

 20-3    (a)  A retailer is subject to disciplinary action as provided by

 20-4    this section if:

 20-5                (1)  an agent or employee of the retailer commits an

 20-6    offense under Subchapter H, Chapter 161, Health and Safety Code;

 20-7    and

 20-8                (2)  the retailer, with criminal negligence, failed to

 20-9    prevent the offense through adequate supervision and training of

20-10    the agent or employee.

20-11          (b)  If the comptroller finds, after notice and hearing as

20-12    provided by this subchapter, that a permit holder has violated

20-13    Subchapter H or K, Chapter 161, Health and Safety Code, at a place

20-14    of business for which a permit is issued, the comptroller may

20-15    suspend the permit for that place of business or administratively

20-16    assess a fine as follows:

20-17                (1)  if the permit holder has not been found to have

20-18    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

20-19    that place of business during the preceding 12 months, the

20-20    comptroller may require the permit holder to pay a fine in an

20-21    amount not to exceed $500;

20-22                (2)  if the permit holder has been found to have

20-23    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

20-24    that place of business once during the preceding 12 months, the

20-25    comptroller may require the permit holder to pay a fine in an

20-26    amount not to exceed $750; and

20-27                (3)  if the permit holder has been found to have

 21-1    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

 21-2    that place of business at least twice during the preceding 12

 21-3    months, the comptroller may require the permit holder to pay a fine

 21-4    in an amount not to exceed $1,000 or suspend the permit for that

 21-5    place of business for not more than three days.

 21-6          (c)  Except as provided by Section 154.1143, if the permit

 21-7    holder has been found to have violated Section 161.082(b), Health

 21-8    and Safety Code, on four or more previous and separate occasions at

 21-9    the same place of business during the preceding 12 months, the

21-10    comptroller shall revoke the permit.

21-11          (d)  A retailer whose permit has been revoked under this

21-12    section may not apply for a retailer's permit for the same place of

21-13    business before the expiration of six months after the effective

21-14    date of the revocation.

21-15          SECTION 4.04.  Subchapter D, Chapter 154, Tax Code, is

21-16    amended by adding Section 154.1143 to read as follows:

21-17          Sec. 154.1143.  ACTIONS OF EMPLOYEE.  (a)  For purposes of

21-18    Subchapter H, Chapter 161, Health and Safety Code, and the

21-19    provisions of this code relating to the sale or delivery of

21-20    cigarettes or tobacco products to a minor, the comptroller may

21-21    suspend a permit but may not revoke the permit under Section

21-22    154.1142(c) if the comptroller finds that:

21-23                (1)  the employer has not violated Section 161.082(b),

21-24    Health and Safety Code, more than seven times at the place of

21-25    business for which the permit is issued in the 24-month period

21-26    preceding the violation in question;

21-27                (2)  the employer requires its employees to attend a

 22-1    comptroller-approved seller training program;

 22-2                (3)  the employee has actually attended a

 22-3    comptroller-approved seller training program; and

 22-4                (4)  the employer has not directly or indirectly

 22-5    encouraged the employee to violate the law.

 22-6          (b)  The comptroller shall adopt rules or policies

 22-7    establishing the minimum requirements for approved seller training

 22-8    programs.  On application, the comptroller shall approve seller

 22-9    training programs meeting the requirements that are sponsored

22-10    privately or by public community colleges.  The comptroller may

22-11    charge an application fee in an amount necessary to defray the

22-12    expense of processing the application.

22-13          (c)  The comptroller may approve under this section a seller

22-14    training program sponsored by a permit holder for the purpose of

22-15    training its employees without regard to whether the employees are

22-16    located at the same place of business.  This subsection applies

22-17    only to a permit holder who employs at least 100 persons at any one

22-18    time during the permit year who sell cigarettes or tobacco

22-19    products.

22-20          SECTION 4.05.   Section 154.504, Tax Code, is amended to read

22-21    as follows:

22-22          Sec. 154.504.  POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL

22-23    PACKAGE.  A person commits an offense and is subject to a $100 fine

22-24    if the person sells cigarettes in quantities less than an

22-25    individual package containing at least 20 cigarettes.

22-26          SECTION 4.06.  (a)  Section 155.049, Tax Code, is amended by

22-27    amending Subsection (b) and adding Subsection (g) to read as

 23-1    follows:

 23-2          (b)  An application for a permit required by this chapter

 23-3    must be accompanied by a fee of:

 23-4                (1)  $300 [$100] for a bonded agent's permit;

 23-5                (2)  $300 [$100] for a distributor's permit;

 23-6                (3)  $200 [$50] for a wholesaler's permit; [and]

 23-7                (4)  $15 for each permit for a vehicle if the applicant

 23-8    is also applying for a permit as a bonded agent, distributor, or

 23-9    wholesaler or has received a current permit from the comptroller

23-10    [treasurer] under Sections 155.041 and 155.048; and

23-11                (5)  $180 for a retailer's permit.

23-12          (g)  Notwithstanding Subsection (b)(5), an application for a

23-13    retailer's permit issued or renewed before September 1, 1999, must

23-14    be accompanied by a fee of $125.  This subsection expires December

23-15    31, 1999.

23-16          (b)  Section 155.049(c), Tax Code, is repealed.

23-17          SECTION 4.07.   Section 155.058, Tax Code, is amended to read

23-18    as follows:

23-19          Sec. 155.058.  REVENUE.  (a)  Except as provided by

23-20    Subsection (b), revenue [Revenue] from the sale of permits to

23-21    distributors, wholesalers, and bonded agents is allocated in the

23-22    same manner that other revenue is allocated by Subchapter H.

23-23          (b)  Revenue from the sale of retailer's permits shall be

23-24    deposited to the general revenue fund and may be appropriated only

23-25    as provided by this section.  The money may be appropriated first

23-26    to the comptroller for administration of licensing of retailers

23-27    under this chapter or Chapter 154.

 24-1          (c)  If, after any appropriation is made under Subsection

 24-2    (b), revenue remains from the sale of retailer's permits, the

 24-3    remaining money may be appropriated to the comptroller for

 24-4    administration and enforcement of Subchapters H, K, and N, Chapter

 24-5    161, Health and Safety Code.

 24-6          (d)  If, after any appropriation is made under Subsections

 24-7    (b) and (c), revenue remains from the sale of retailer's permits,

 24-8    the remaining money may be appropriated to the comptroller to

 24-9    administer the comptroller's responsibilities under Subchapter O,

24-10    Chapter 161, Health and Safety Code.

24-11          SECTION 4.08.   Subchapter C, Chapter 155, Tax Code, is

24-12    amended by adding Section 155.0592 to read as follows:

24-13          Sec. 155.0592.  DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.

24-14    (a)  A retailer is subject to disciplinary action as provided by

24-15    this section if:

24-16                (1)  an agent or employee of the retailer commits an

24-17    offense under Subchapter H, Chapter 161, Health and Safety Code;

24-18    and

24-19                (2)  the retailer, with criminal negligence, failed to

24-20    prevent the offense through adequate supervision and training of

24-21    the agent or employee.

24-22          (b)  If the comptroller finds, after notice and hearing as

24-23    provided by this subchapter, that a permit holder has violated

24-24    Subchapter H or K, Chapter 161, Health and Safety Code, at a place

24-25    of business for which a permit is issued, the comptroller may

24-26    suspend the permit for that place of business or administratively

24-27    assess a fine as follows:

 25-1                (1)  if the permit holder has not been found to have

 25-2    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

 25-3    that place of business during the preceding 12 months, the

 25-4    comptroller may require the permit holder to pay a fine in an

 25-5    amount not to exceed $500;

 25-6                (2)  if the permit holder has been found to have

 25-7    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

 25-8    that place of business once during the preceding 12 months, the

 25-9    comptroller may require the permit holder to pay a fine in an

25-10    amount not to exceed $750; and

25-11                (3)  if the permit holder has been found to have

25-12    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

25-13    that place of business at least twice during the preceding 12

25-14    months, the comptroller may require the permit holder to pay a fine

25-15    in an amount not to exceed $1,000 or suspend the permit for that

25-16    place of business for not more than three days.

25-17          (c)  Except as provided by Section 155.0593, if the permit

25-18    holder has been found to have violated Section 161.082(b), Health

25-19    and Safety Code, on four or more previous and separate occasions at

25-20    the same place of business during the preceding 12 months, the

25-21    comptroller shall revoke the permit.

25-22          (d)  A retailer whose permit has been revoked under this

25-23    section may not apply for a retailer's permit for the same place of

25-24    business before the expiration of six months after the effective

25-25    date of the revocation.

25-26          SECTION 4.09.  Subchapter C, Chapter 155, Tax Code, is

25-27    amended by adding Section 155.0593 to read as follows:

 26-1          Sec. 155.0593.  ACTIONS OF EMPLOYEE.  (a)  For purposes of

 26-2    Subchapter H, Chapter 161, Health and Safety Code, and the

 26-3    provisions of this code relating to the sale or delivery of

 26-4    cigarettes or tobacco products to a minor, the comptroller may

 26-5    suspend a permit but may not revoke the permit under Section

 26-6    155.0592 if the comptroller finds that:

 26-7                (1)  the employer has not violated Section 161.082(b),

 26-8    Health and Safety Code, more than seven times at the place of

 26-9    business for which the permit is issued in the 24-month period

26-10    preceding the violation in question;

26-11                (2)  the employer requires its employees to attend a

26-12    comptroller-approved seller training program;

26-13                (3)  the employee has actually attended a

26-14    comptroller-approved seller training program; and

26-15                (4)  the employer has not directly or indirectly

26-16    encouraged the employee to violate the law.

26-17          (b)  The comptroller shall adopt rules or policies

26-18    establishing the minimum requirements for approved seller training

26-19    programs.  On application, the comptroller shall approve seller

26-20    training programs meeting the requirements that are sponsored

26-21    privately or by public community colleges.  The comptroller may

26-22    charge an application fee in an amount necessary to defray the

26-23    expense of processing the application.

26-24          (c)  The comptroller may approve under this section a seller

26-25    training program sponsored by a permit holder for the purpose of

26-26    training its employees without regard to whether the employees are

26-27    located at the same place of business.  This subsection applies

 27-1    only to a permit holder who employs at least 100 persons at any one

 27-2    time during the permit year who sell cigarettes or tobacco

 27-3    products.

 27-4          ARTICLE 5.  FEDERAL WAIVER; TRANSITION; EFFECTIVE DATE;

 27-5                             EMERGENCY CLAUSE

 27-6          SECTION 5.01.  (a)  If, before the changes in law made by

 27-7    this Act to Subchapter H or K, Health and Safety Code, take effect,

 27-8    the comptroller determines that an exemption from federal

 27-9    preemption from the federal Food and Drug Administration is

27-10    necessary for implementation, the comptroller shall request the

27-11    exemption and may delay implementing the affected provision of law

27-12    until the exemption is granted.

27-13          (b)  If a provision of law affected by a delay in

27-14    implementation under Subsection (a) of this section contains a

27-15    criminal penalty:

27-16                (1)  the comptroller shall publish in the Texas

27-17    Register notice of:

27-18                      (A)  the delay in implementation; and

27-19                      (B)  the grant of an exemption from preemption

27-20    requested under Subsection (a); and

27-21                (2)  the provision takes effect on the 90th day after

27-22    the date that notice of the grant of an exemption is published

27-23    under Paragraph (B) of Subdivision (1) of this subsection.

27-24          SECTION 5.02.  (a)  Except as provided by Subsection (b) of

27-25    this section, this Act takes effect September 1, 1997.

27-26          (b)  Sections 161.083, 161.085, and 161.086, Health and

27-27    Safety Code, and Subchapter N, Chapter 161, Health and Safety Code,

 28-1    as added by this Act, take effect January 1, 1998.

 28-2          (c)  The change in law made by this Act applies only to an

 28-3    offense committed on or after the effective date of this Act.  For

 28-4    purposes of this subsection, an offense is committed before the

 28-5    effective date of this Act if any element of the offense occurs

 28-6    before that date.  An offense committed before the effective date

 28-7    of this Act is governed by the law in effect when the offense was

 28-8    committed, and the former law is continued in effect for that

 28-9    purpose.

28-10          (d)  This Act applies to the sale or distribution of coupons,

28-11    cigarettes, or tobacco products on or after the effective date of

28-12    this Act.  The sale or distribution of a coupon, cigarette, or

28-13    tobacco product before the effective date of this Act is governed

28-14    by the law in effect when the sale or distribution was made, and

28-15    that law is continued in effect for that purpose.

28-16          (e)  The increase in the amount of a fee as provided by

28-17    Section 154.111 or 155.049, Tax Code, as amended by this Act, takes

28-18    effect for and is applicable to the permit years beginning on or

28-19    after March 1, 1998, and June 1, 1998, as applicable.

28-20          SECTION 5.03.  Notwithstanding any other law, the

28-21    implementation and execution of the programs established by the

28-22    change in law made by this Act are contingent on the availability

28-23    of funds for those programs, as determined by the comptroller,

28-24    from:

28-25                (1)  the permit fee imposed on retailers under Chapters

28-26    154 and 155, Tax Code, as amended by this Act; and

28-27                (2)  the fee on outdoor advertising of cigarette and

 29-1    tobacco products imposed under Subchapter K, Chapter 161, Health

 29-2    and Safety Code, as amended by this Act.

 29-3          SECTION 5.04.  The importance of this legislation and the

 29-4    crowded condition of the calendars in both houses create an

 29-5    emergency and an imperative public necessity that the

 29-6    constitutional rule requiring bills to be read on three several

 29-7    days in each house be suspended, and this rule is hereby suspended.